Firefighter Shift Substitutions, Termination, and the FLSA

Today’s FLSA Question: I am a fulltime firefighter in a municipal fire department. Our department allows firefighters to trade shifts with each other. However, the department just fired a firefighter that owes me 48 hours in shift trades. What happens to those hours? Since the department fired the other firefighter, shouldn’t the department be responsible for the 48 hours of owed swap? What does the FLSA require?

Answer: There is a long-standing phrase in my fire department: “You live and die by the swap.” Obviously, firefighters do not literally live and die by the swap, however the underlying implication from that phrase is that if a firefighter chooses to utilize swap time in lieu of vacation or another form of paid leave it may not always work out for that firefighter in the end. That phrase can certainly apply to the situation described in your question.

As firefighters we view shift “swaps” or “trades” as reciprocal in nature. As an example, firefighter A works a 24-hour shift for firefighter B this week and firefighter B works one of firefighter A’s shifts next month. Sometimes these arrangements can get a little more complicated than the first example. Firefighter A works a few four to six-hour blocks of firefighter B’s work shifts so that firefighter B can attend school, kids sporting events, or any number of possible personal obligations. At some point in the future [or in the past] firefighter B might work A’s entire 24 or even 48-hour work shift to reciprocate for all of those smaller swaps or trades. Whether the swapped or traded hours end up being reciprocated hour for hour is most frequently left to the two individuals to figure out.

Despite the way firefighters view shift “swaps” or “trades,” the FLSA does not require that employees reciprocate worktime missed because of “swaps” or “trades.” In fact, you will not find any reference to the terms “swap” or “trade” in either the FLSA or Department of Labor (DOL) regulations relating to the practice. The FLSA and DOL regulations refer to “swaps” or “trades” as “substitution(s).” The DOL has written several opinion letters that have confirmed there is no requirement for an employee to repay any time worked for another employee as a “substitute.” The DOL has also written an opinion letter that clearly states employers are not financially responsible to employees in the event a shift substitution is not reciprocated. Therefore, to answer your specific question, there is no FLSA requirement for your employer to provide you with 48 hours of paid leave or anything else for that matter because a firefighter that you had previously substituted worktime with was terminated.

With that stated, there are a couple of caveats to the above analysis. I am assuming that the fire department did not terminate the other firefighter solely to deny you 48 hours of owed swap time. While that seems far-fetched, if true that would possibly change the above analysis and open the department to a wide variety of legal problems including the FLSA. Similarly, the department’s policies, collective bargaining agreements or other similar “non-FLSA” related factors could also impact this analysis. For example, if the department’s policies and procedures, rules and regulations or the collective bargaining agreement requires that swaps or traded shifts be reciprocated, the fact that the other firefighter is unable to reciprocate due to the department’s actions could provide a basis for a claim seeking the time back from the department. This wouldn’t be a claim under the FLSA, however it could be source of concern for the department. However, that would be dependent on the specific language of the policy or agreement and would require local legal counsel to review under state labor relations and employment laws.

Thanks for the good question.

Here is some more from FirefighterOvertime on Shift Substitutions and the FLSA.

Shift Trades and the FLSA